Opinion
E080900
11-30-2023
In re KAYLAH U. et al., Persons Coming Under the Juvenile Court Law. v. JOSE U., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. DPRI2200200. Dorothy McLaughlin, Judge.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
MENETREZ J.
Jose U. (father) appeals from the juvenile court's dispositional findings and orders concerning his four minor children. Father challenges the sufficiency of the evidence supporting three jurisdictional findings against him under Welfare and Institutions Code section 300, subdivision (b)(1) (§ 300(b)(1)) (unlabeled statutory references are to this code). Father also contends that the court abused its discretion by requiring him to submit to drug tests and by requiring his visits to be supervised. We affirm.
BACKGROUND
Father and Liliana R. (mother) (collectively, parents) became romantically involved in 2007 and were married in 2016. They have four children together- Kaylah U. (born in 2008), Genesis U. (born in 2009), Sebastian U. (born in 2013), and Santiago U. (born in 2015).
In 2017 and 2018, the family was involved in a dependency proceeding in Orange County. Both parents received family maintenance services. The family had come to the attention of child protection authorities because both parents used cocaine, mother overdosed, and father called the paramedics because mother was unconscious. Mother reported that father had choked her in the family's residence while the children were at home. Parents participated in services for 14 months, including parenting classes for both parents and anger management services for father. Both parents reunified with the children, and jurisdiction was terminated in October 2018.
In early August 2022, the Riverside County Department of Public Social Services (the Department) received a 10-day referral with allegations of general neglect. Mother had just moved back in with father, having previously left because of his drug use. Two weeks after returning home, mother called law enforcement to report that "father was passed out and probably on narcotics." Mother was at work when she called the police, while father was at home with Sebastian and Santiago. Sebastian and Santiago called mother at work and told her that father had been locked in the bathroom for four hours. Mother arrived home minutes before the police and the fire department arrived. Father opened the front door, and Sebastian and Santiago ran out of the house. Father slammed the door in mother's face because he was upset that she had called law enforcement. Mother did not have a key to the residence. When law enforcement arrived, they did not speak with father because he did not open the front door. Mother reported that father had been "sweating profusely and, based on his appearance, she thought he was under the influence of cocaine."
A social worker interviewed the children and father 10 days later. Sebastian explained that on the day that the police were called mother called him, and he told her that father was in the shower and was not answering the door. Mother told Sebastian to wait outside for the police. Sebastian was worried and afraid because he believed that mother thought he was in danger. Santiago did not talk to the social worker. Kaylah was not home when Sebastian and Santiago called mother at work. She felt safe at home and did not have any concerns about herself or her siblings. Genesis reported that parents had not fought or argued recently, but Genesis sometimes worried when parents did not get along.
Father initially told the social worker that he was in the shower and did not hear Sebastian knocking on the bathroom door, but father also said that he was asleep. Father explained that he "'sleeps hard'" because he takes Trazadone. Father did not believe that mother had any reason to worry when she called law enforcement. Father admitted that he previously used cocaine, but he said that he had not "'used for a while.'" He could not identify when he last used drugs. Father denied that there had been any recent domestic violence between himself and mother.
The social worker described father as "moving frequently and sweating" during the interview. She said that father spoke clearly, but she believed that father's "thoughts and ability to recall what happened" the previous week "seemed impaired." Father took a saliva drug test, and it was negative for all substances.
Mother was present when the social worker interviewed father, but mother refused to participate in the interview. Mother submitted a urine sample that tested negative for controlled substances.
Between late August and early October 2022, a social worker unsuccessfully attempted to contact parents three times by telephone and in person. In late October, a social worker interviewed Kaylah and Genesis, who reported that they were not worried about anything at home and that parents were getting along.
On November 1, 2022, the Department received another 10-day referral with allegations of general neglect. Law enforcement responded to parents' home at around 5:40 a.m. because someone had called 911 an hour earlier and hung up. Genesis admitted that she called 911 when she heard her parents arguing from her bedroom. Mother initially reported that "she was choked and punched by [father], but then recanted and said [father] got mad at her, grabbed her from her shirt while arguing over his drug use, because she had caught him in a lie or caught him using methamphetamine." Father confirmed that he and mother were arguing about his alleged use of methamphetamine. Father said that he went into another room, and mother banged and kicked at the door. Father opened the door to tell mother to shut up and then grabbed mother's shirt while she pulled away. Mother went downstairs, and father continued to pull on mother's shirt to attempt to get her to stop, which is "when everyone intervened" and father left. Paternal grandfather and a paternal uncle were present and said that parents argued, which they did frequently, but there had not been any physical altercation between father and mother. Because of the inconsistent witness statements, no criminal charges were filed.
The next day, a referral was generated with Orange County Children and Family Services (the Orange County agency). The children attend school in Orange County. Santiago revealed that he and his siblings saw father "hit and choke" mother, causing her to have marks on her neck and a bloody nose.
One week later, a social worker from the Orange County agency interviewed Sebastian, Santiago, and Genesis. Sebastian reported that parents argued, screamed at each other, and "hurt each other with their hands." He specified that father hit mother. Sebastian disclosed that although mother usually called the police when parents fought, Genesis had recently called the police because father and mother "hurt each other," but Kaylah and Genesis then stopped the fight. Father left the house afterward. Sebastian noticed redness on mother's neck. Sebastian felt safe at home unless parents were fighting, in which case he would stay in his bedroom because he did not feel safe.
Santiago told the social worker that "'mom was getting killed by dad.'" Santiago said that when he was in mother's bedroom father choked mother and threw her to the ground, causing mother to bleed all over. Mother had red marks on her throat, arms, and back. Santiago explained that father hid from the police when they came to the house. Santiago said that he was afraid of father. Asked about how safe he felt on a scale of one to 10, with 10 being safest, Santiago said that he currently felt at a 10 but when parents fought he felt "'about a 2.'"
Genesis told the social worker that parents did "not get along 'that much.'" She recently heard parents fighting and things falling in another room, but she denied that the police came to the house. Genesis also denied seeing any marks or bruises on mother, seeing parents hurt each other, and being afraid of anyone. Asked how safe she felt with parents on a scale of one to 10, with 10 indicating that she felt safe, Genesis said that she felt at a 10 with mother and at an eight with father "because 'he gets mad for no reason.'"
One week later, in mid-November 2022, a social worker from the Department spoke on the phone with father, who refused to allow the social worker to interview the children again. Father also said that mother did not want to be interviewed. Father became defensive when asked about his drug use but agreed to take a drug test, which he did. The results were negative for all screened substances.
Parents met with a social worker in early December 2022. Mother refused to be interviewed. Father admitted that parents had argued the previous month but denied that the altercation was physical, concerned his drug use, or was witnessed by the children. Father admitted that he previously used drugs but denied current use. He asked for counseling services.
In mid-December 2022, father reported that he was going to start domestic violence counseling soon. Father said that things at home were stable, but he would not allow the social worker to speak with the children.
A social worker interviewed mother about one week later. Mother described what happened between her and father the previous month when Genesis called 911. Parents were arguing because father had locked himself in the bedroom for hours. Mother recognized father's "behavior as being under the influence of drugs as she has known him for many years." When mother confronted father, he was upset and acted aggressively toward her. Father "pushed her, grabbed her by the neck and choked her." Father moved out of the house after the incident but returned two weeks before mother spoke with the social worker. Mother did not believe that father was "currently abusing drugs" but suspected he had last used drugs in early November 2022.
Several days before speaking with the social worker, mother moved out of the home because she feared father, wanted to protect the children, and worried that the Department would remove the children from her. Mother did not speak with a social worker sooner because she was concerned that the children would be removed. Mother and the children were living with maternal grandmother in Orange County.
In late December 2022, the Department filed a dependency petition as to all four children, with jurisdictional allegations under section 300(b)(1) against father and mother. The petition alleged that the children were at substantial risk of suffering serious physical harm because (1) parents engaged "in ongoing acts of domestic violence while in the presence of the children, with the most recent incident occurring in November 2022," (2) father has a history of "abusing controlled substances, specifically cocaine," and (3) parents "have a history" with the Orange County agency "due to issues involving substance abuse and domestic violence," and even though "parents reunified with their children," parents "failed to benefit from services provided," thus "plac[ing] the children at risk of harm and/or danger."
At the detention hearing, the court detained the children from father and released them to mother. Father objected to the detention findings. As to the allegation of substance abuse, father's attorney argued that the recent drug tests were negative and that father denied mother's allegations concerning father's substance abuse. Counsel indicated that father wanted to be authorized to submit to a hair follicle test to demonstrate his sobriety. Father also was willing to submit to "on-demand random 24-hour drug and alcohol testing to show that he's sober." Father requested referrals to a domestic violence program and to an outpatient substance abuse treatment program. The court authorized hair follicle testing and on-demand substance testing for father and ordered the Department to provide father with the requested referrals.
The court ordered supervised visits for father at least twice per week for one hour per visit. The court ordered the Department to assess whether there were any relatives who could supervise visits. The court denied father's counsel's request to liberalize visits, noting that it was too soon and that the court would reconsider the issue at the jurisdiction and disposition hearing.
A social worker interviewed the children in January 2023 for the jurisdiction and disposition report. The social worker asked all of the children individually why they believed that the Department was involved with the family. The children all reported that the Department was involved because parents argued.
Sebastian said that father hit mother "'with his hands'" and that mother had bruises. Sebastian felt afraid when parents argued. Santiago said his parents would "fight," and he explained: "Sometimes my dad throws her on the ground, sometimes my mom calls the police, I get scared."
Kaylah denied ever having seen parents "become physical during their arguments." Asked about any recent domestic violence incidents between parents, Genesis reported that she went outside when her parents got into an argument and that mother then came outside with "'a red mark on her neck'" and said that father "'hit her.'" Both Kaylah and Genesis said that they had not seen anyone in the household use drugs or use or abuse alcohol.
The social worker reinterviewed mother. Mother recanted everything she had previously said and told the social worker that everything the Department documented from August through November 2022 was "'[l]ies.'" Mother claimed that the domestic violence was all "from the past"-the case that was closed-and father last used cocaine in 2017. With respect to the incident in August 2022, mother said that she did not make any comments about father being under the influence of controlled substances, and she also claimed not to know whether he was on drugs, because she was not inside the house. As to the November 2022 incident when Genesis called 911, mother said, "I'm confused, I don't know. I was told it was closed."
In the jurisdiction and disposition report filed on January 26, 2023, a social worker reported that father had not visited the children in the month since the detention hearing. A few days earlier, mother told a social worker that a paternal uncle could supervise any visits. Mother provided paternal uncle with the social worker's contact information.
A social worker interviewed father, who reported that he had participated in four counseling sessions and was planning to start anger management counseling with his therapist. Father denied that he had a drug problem but indicated that he wanted to be cooperative and was willing to submit to random drug tests at a nearby location. But father also said that he wanted to speak with his attorney.
The court held a contested jurisdiction and disposition hearing in February 2023. Father testified. He denied "currently" using "any illicit drugs, such as cocaine." With respect to the August 2022 incident, father denied that mother had come to the house because the children called her. He said that mother came to the house because of a preexisting plan to pick up Santiago and Sebastian. Father denied being on any illicit drugs that day and said he was not passed out in the bathroom. Father did not answer the phone because he was in the shower. Father was unaware that mother had called law enforcement and that they arrived at the house. After showering, father went upstairs to his bedroom.
With respect to the November 2022 incident, father admitted that he drank "some beers," but he denied having "any cocaine or drugs" in his system. Father said that he disagreed with the allegation that he had pushed mother, grabbed her by the neck, and choked her. Father left the house before law enforcement arrived at 5:40 a.m. He did not know that anyone had called 911. He left so "things" did not "escalate with the argument with mother." In the domestic violence classes father took for the previous dependency proceeding, he learned "to walk away" when arguing with his spouse. On cross-examination, father agreed that he "left the home to avoid the domestic violence incident escalating."
Father called as a witness the social worker who wrote the jurisdiction and disposition report. She confirmed that she was not aware of any criminal charges against father arising from the November 2022 incident, and she was not aware of any drug test taken by father that day. She confirmed that father had taken two drug tests since December 2022 and that the results of both were negative.
On cross-examination, the social worker stated that she spoke with mother the week before. Mother informed the social worker that father "is very aggressive and she wants to file for divorce and that he would benefit from services." Mother acknowledged that there was "ongoing domestic violence in the relationship." The social worker testified that the children also confirmed that there was ongoing domestic violence in the relationship after the prior dependency case had closed. The children denied that there was any substance abuse in the house.
After the parties submitted, father's counsel argued that there was not sufficient evidence supporting any of the allegations. Counsel also noted that in the event that the court sustained the allegations, father submitted on the recommendation for reunification services.
The court sustained all of the allegations in the petition and adjudged the children dependents. The court removed the children from father and placed them with mother. The court ordered family reunification services for father and family maintenance services for mother. The court ordered father's visitation to remain the same. The court adopted the findings and orders recommended by the Department in the jurisdiction and disposition report, which included random and on-demand substance abuse testing for father.
DISCUSSION
A. Jurisdictional Findings
Father contends that the record does not contain sufficient evidence to support any of the jurisdictional findings. We disagree as to the findings concerning domestic violence and father's substance abuse. We need not and do not analyze whether substantial evidence supports the finding concerning the prior dependency case, because our conclusion about the other two findings (or even one) is sufficient to affirm the juvenile court's assertion of dependency jurisdiction over the children. (In re M.R. (2017) 7 Cal.App.5th 886, 896.)
Section 300(b)(1) allows the juvenile court to assert jurisdiction when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of . . . [¶] . . . [t]he failure or inability of the child's parent or guardian to adequately supervise or protect the child," (§ 300, subd. (b)(1)(A)) or by "[t]he willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment" (§ 300, subd. (b)(1)(C)).
"'In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them.'" (In re R.T. (2017) 3 Cal.5th 622, 633.) "'In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court.'" (Ibid.) The appellant bears "the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or orders." (In re E.E. (2020) 49 Cal.App.5th 195, 206.)
"When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
The record contains substantial evidence that the children were at substantial risk of harm because parents engaged "in ongoing acts of domestic violence while in the presence of the children, with the most recent incident occurring in November 2022." Mother told a social worker that in November 2022 father "pushed her, grabbed her by the neck and choked her." Moreover, there was ample evidence that the children were present when father attacked mother. Santiago told someone at school that he and the other children witnessed the attack. In describing the incident to social workers, Santiago and Sebastian corroborated details of the incident described by mother, including that father choked mother. Santiago believed that mother "'was getting killed by'" father. Both boys and Genesis also said that they saw red marks on mother's neck, and Santiago described additional injuries suffered by mother. That constitutes substantial evidence that the children were at substantial risk of suffering serious harm as a result of the ongoing domestic violence between parents. (See, e.g., In re T.V. (2013) 217 Cal.App.4th 126, 134; In re Heather A. (1996) 52 Cal.App.4th 183, 193-194, abrogated on another ground in In re R.T., supra, 3 Cal.5th at pp. 628-629.)
Father's arguments to the contrary are unavailing. Father argues that the evidence was insufficient because (1) the record does not include a police report from the November 2022 incident, (2) no charges were filed against father on the basis of that incident, (3) mother recanted her statements about that incident and later claimed that there had been no domestic violence with father since 2017, and (4) by the time of the jurisdiction and disposition hearing, mother and father were not living together and father was enrolled in counseling.
It is irrelevant that the record does not include a police report from the November 2022 incident or that charges were not filed against father. Mother's and the children's descriptions of the attack are sufficient evidence to support the allegation. (In re Alexis E., supra, 171 Cal.App.4th at p. 451 ["Evidence from a single witness, even a party, can be sufficient to support the trial court's findings"].) In analyzing whether substantial evidence supports the jurisdictional finding, we review the sufficiency of the evidence presented, not whether hypothetical evidence would be stronger evidence supporting the finding. (People v. Vargas (2020) 9 Cal.5th 793, 821-822.)
Mother's recantation likewise does not show that the jurisdictional finding is not supported by substantial evidence. "A trier of fact is free to disbelieve a witness, even one uncontradicted, if there is any rational ground for doing so." (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043.) The juvenile court was free to disbelieve mother's recantation and to believe instead that mother had been honest in her initial description of the event and her relationship with father. The court reasonably could have believed that mother changed her story because of the pending petition, which subjected the family to another dependency proceeding and the possibility that the children would be removed from both parents. That interpretation of the evidence is supported by the fact that the week before the jurisdiction and disposition hearing mother again told the social worker that father was "very aggressive" and confirmed that there was "ongoing domestic violence in the relationship." And regardless of the evidence that father was enrolled in counseling and no longer living with mother at the time of the hearing, there was no evidence that father had benefitted from that counseling or would remain out of the home without court supervision.
Father also challenges the evidence supporting the finding that his substance abuse history placed the children at substantial risk of physical harm, arguing that "substance abuse, without more, is an insufficient ground to assert jurisdiction in dependency proceedings." (See, e.g., In re L.C. (2019) 38 Cal.App.5th 646, 654 [a parent's drug use "'without more, cannot' support jurisdiction"].) We disagree. This is not "a case involving substance abuse without more." (In re L.W. (2019) 32 Cal.App.5th 840, 850.)
The record contains substantial evidence that father's drug use placed the children at substantial risk of physical harm. The evidence shows that father left Sebastian and Santiago alone and unsupervised in the house for four hours when they were six and eight years old, while father locked himself in a bathroom and used drugs. Moreover, there is ample evidence that father was using drugs when he physically attacked mother in front of the children in November 2022. Despite later recantations, mother and father initially agreed that they had been arguing about father's drug use. Mother, having been together with father for over 15 years, recognized his behavior that night as indicating that he was under the influence, and he did not deny that he had used drugs in the past. Given the recent evidence that father left two young children unsupervised for hours while he used drugs and physically attacked mother in front of the children while under the influence, we conclude that substantial evidence supports the juvenile court's finding that father's drug use placed the children at substantial risk of physical harm.
Father's arguments to the contrary are meritless. Father ignores the evidence of his recent drug use and the risk it posed to the children, and he instead focuses exclusively on the evidence that supports a contrary conclusion, namely, the negative drug test results and the children's reports that there was no drug use in the house. The children's failure to notice father's drug use is not conclusive proof that father was not using drugs at home, particularly given the evidence that father was attempting to conceal his drug use by, for example, locking himself in another room. The negative drug test results are similarly inconclusive, especially because father waited at least 10 days after the August and November 2022 incidents before he took a drug test. In any event, when analyzing the sufficiency of the evidence supporting a jurisdictional finding, we analyze the evidence in the light most favorable to the juvenile court's finding and uphold the finding "'if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed the other evidence.'" (In re Madison S. (2017) 15 Cal.App.5th 308, 318.)
For these reasons, we affirm the true findings on the jurisdictional allegations concerning father's domestic violence and substance abuse. Because we affirm the juvenile court's finding of jurisdiction on those bases, we need not consider whether the remaining ground for jurisdiction-father's dependency history-is supported by substantial evidence. (In re Alexis E., supra, 171 Cal.App.4th at p. 451.)
B. Drug Testing
Father argues that the juvenile court abused its discretion by requiring him to drug test as part of his case plan. We disagree.
"Section 362, subdivision (d) authorizes the juvenile court to 'direct any reasonable orders to the parents' of a dependent child as the court deems necessary and proper to ensure appropriate care, supervision, custody, conduct, maintenance, and support of the child (§ 362, subd. (d)), and the juvenile court enjoys broad discretion in crafting a dispositional case plan to this end." (In re I.R. (2021) 61 Cal.App.5th 510, 522.) "We review the juvenile court's disposition case plan for an abuse of discretion." (Ibid.) The juvenile court "'cannot arbitrarily order services that are "not reasonably designed" to eliminate the behavior or circumstances that led to the court taking jurisdiction of the child.'" (In re M.C. (2023) 88 Cal.App.5th 137, 155 (M.C.).)
The Department contends that by not objecting below father forfeited any challenge to the drug testing requirement. We agree. It is undisputed that father did not object to the drug testing component (or any other part) of his case plan. By failing to object to the drug testing requirement, father forfeited the argument on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Anthony Q. (2016) 5 Cal.App.5th 336, 345.)
In any event, the juvenile court did not abuse its discretion by ordering father to submit to random and on-demand drug testing. Father used drugs while the children were in his care and consequently left Santiago and Sebastian alone for four hours when they were six and eight years old. Moreover, father physically attacked mother in front of the children under the influence. Under these circumstances, the drug testing requirement was "'"reasonably designed" to eliminate the behavior or circumstances that led to the court taking jurisdiction of the child.'" (M.C., supra, 88 Cal.App.5th at p. 155.) The juvenile court did not abuse its discretion by including a drug testing requirement in father's case plan.
C. Visitation
Father argues that the juvenile court abused its discretion by requiring his visits with the children to be supervised. He contends that he "had appropriate interactions" with the children and that there was "no evidence" that the children would be at risk with him. We disagree.
Section 362.1 provides: "In order to maintain ties between the parent . . . and the child, and to provide information relevant to deciding if, and when, to return a child to the custody of his or her parent . . ., any order placing a child in foster care, and ordering reunification services, shall provide . . . [¶] . . . for visitation between the parent or guardian and the child. Visitation shall be as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A).) "No visitation order shall jeopardize the safety of the child." (Id., subd. (a)(1)(B).) "The power to regulate visits between dependent children and their parents rests with the juvenile court and its visitation orders will not be disturbed on appeal absent an abuse of discretion." (In re D.P. (2020) 44 Cal.App.5th 1058, 1070.)
The record belies father's contention that there was no evidence that the children would be at any risk with him. As we have already explained, father left Sebastian and Santiago unattended for four hours when they were six and eight years old and while he was using drugs. Mother moved herself and the children out of the house after the November 2022 incident in part because she wanted to protect the children. Moreover, Santiago was afraid of father, and Genesis did not feel safe with father, because he got "'mad for no reason.'" Given those circumstances, the juvenile court acted well within its discretion by requiring supervision during father's visits to ensure the children's safety.
DISPOSITION
We affirm the jurisdictional and dispositional findings and orders of February 27, 2023.
We concur: RAMIREZ P. J. MILLER J.